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Gay sex doesn't cause bodily injury: HC

The Delhi High Court pulls up BJP leader BP Singhal who pleaded for continuing with the penal provisions on criminalisation of homosexual acts on this ground.

delhi Updated: Nov 06, 2008 20:21 IST

The Delhi High Court on Thursday said gay sex does not cause bodily injury and pulled up senior BJP leader BP Singhal who pleaded for continuing with the penal provisions on criminalisation of homosexual acts on this ground.

"In several countries where ban has been lifted (from gay sex), no one has claimed that act is injurious. Even WHO does not say that it causes injuries to people involved in such acts," a Bench comprising Chief Justice AP Shah and Justice S Muralidhar said.

The Bench was objecting to the contention of BJP leader that such acts cause injuries in private parts of the people who indulge in gay sex and that it should not be allowed even between consenting adults.

"Do you have any material to substantiate the claim that indulgence in such acts causes injury to people's body," the Bench said.

Advocate HV Sharma appearing for the leader, however, could not place any material before the Court saying no such study has been done in the country.

"Human being are same everywhere," the court remarked asking him to place before it any report which supports his contentions.

The Court was hearing a bunch of petitions filed by gay rights activists seeking decriminalisation of gay sex among consenting adults which, at present, is an offence. The BJP leader is a respondent opposing the petition seeking decriminalisation of gay sex.

Section 377 of Indian Penal Code provides a punishment upto life imprisonment for indulging in gay sex.

Sharma further contended that gay sex should not be allowed in the country irrespective of the fact whether it is with consent or not.

"Consent is irrelevant in such cases otherwise on the same ground it could be contended that prostitution, smoking, incest marriage be also legalised if there is a consent among the concerned parties," Sharma said adding that the entire legal system has to be changed if gay sex is decriminalised in the country.

He alleged that gay sex would spread HIV virus as homosexuals indulge in group sex and they do not stick to one partner.
"If it (gay sex) is legalised it would create a law and order problem in the country. Even after it being legalised they (gays) would continue to face a social stigma as it is against our culture," he said.

The gay rights activists, however, refuted the allegation and placed before the court papers related to two researches conducted in foreign countries, establishing that decriminalisation of gay sex did not result in the spread of sexually transmitted disease.

Earlier, gay rights activists had contended that the government by not decriminalising homosexual acts was infringing upon their fundamental right to equality on the ground of morality.

"The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated," they had contended on Thursday.

"Moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex," the activists had said adding that gays in the country don't have full "moral" citizenship and they are being treated as second-class citizens.

Earlier, while hearing the case, the High Court had observed that the problem of HIV cannot be solved by curbing gay sex and pulled up the Centre for seeking the retention of penal provisions against homosexuality on this ground.

"Please show material, research paper or any document even from other country to show that decriminalisation (of gay sex) would lead to spread of HIV," the Court had said when the government contended that homosexuality spreads the disease.

"If your argument is correct then spread of HIV should have stopped in the country as the law has been there for many years. But it is not the case as many people are dying of the dreaded disease," the court had said.